The Investment Treaty Arbitration Review: Covered Investors
Who qualifies as a 'covered investor' under an international investment agreement? Whether an investor is covered by the state's offer to arbitrate certain claims is a critical question that often lies at the heart of jurisdictional disputes. If a state has not consented to arbitration with an investor, an arbitral tribunal has no jurisdiction to hear that investor's claim.
As a general matter, covered investors are (1) persons (either natural or juridical) (2) with the requisite nationality who (3) have control over an investment that is entitled to protection under a given agreement. This chapter addresses common issues concerning such investors; it does not take a position on the proper way to approach or resolve these questions for any particular dispute. Whether an investor is covered in a specific case depends on the specific agreement at issue and the facts underlying the dispute.
II GENERAL PRINCIPLES RELATED TO NATIONALITY AND CONTROL
Under most international investment agreements (IIAs), to qualify for protection, an investor must be a national of a contracting state other than the host state in which they are investing.2 To claim protection, an investor must typically have the relevant nationality at the time of the events giving rise to the claim.3 Although the investor may be able to preemptively structure its investment to gain an IIA's protection, tribunals may look unfavourably on an investor's attempt to manufacture the requisite nationality after an alleged breach solely to bring a claim.4 Indeed, tribunals have largely rejected such post hoc attempts as 'forum shopping'.5
Tribunals have also confronted the question of how long an investor must retain the requisite nationality. That is, while the investor must be an appropriate national at the date giving rise to the claim, must they also have that nationality later in the proceedings? Must it be continuous?6 Under the traditional rules of diplomatic protection, whereby a state could bring a claim against another state based on an injury to one of its nationals, nationality must indeed be continuous.7 In the context of diplomatic protection, the continuous nationality requirement 'ensures that the State seeking to protect a person has a proper interest in such protection'.8 The International Law Commission's Draft Articles on Diplomatic Protection reflect this approach, requiring continuous nationality from the date of the events giving rise to the claim until the date of claim submission.9 Whether a continuous nationality requirement exists in the context of an IIA, however, will depend on that agreement's language.10
Article 25(2) of the ICSID Convention requires that a juridical person have the requisite nationality on the date of consent to arbitration; a natural person must have the requisite nationality on the date of consent and on the date the claim is registered by ICSID.11 One tribunal interpreted this language to mean that there is no requirement under the ICSID Convention that nationality be continuous from the time the claim arises.12
To bring a dispute to arbitration, the investor typically must own or have control of the investment.13 Many IIAs, however, do not define what 'control' means.14 One ICSID decision defined it as legal control, rather than 'actual day-to-day' control.15 It found that, generally, 'legal capacity is to be ascertained with reference to the percentage of shares held', though minority shareholders could also demonstrate legal control 'by reason of the percentage of shares held, legal rights conveyed in instruments or agreements such as articles of incorporation or shareholders' agreements, or a combination of these'.16
A number of treaties contain language protecting investors that exercise 'direct or indirect' control over an investment. The new United States-Mexico-Canada Agreement (USMCA) and the 2012 US Model BIT, for instance, both refer to assets 'that an investor owns or controls, directly or indirectly'.17 Similarly, the BIT between Canada and China protects investments 'owned or controlled directly or indirectly by an investor' of the contracting state.18 In such cases, it has been argued that nationals of a contracting state who hold their investments through intermediaries can nevertheless bring claims – even if those intermediaries do not have the same nationality.19
Though it is possible that an investor might be required to continuously retain the requisite nationality, 'there is no rule of continuous ownership of the investment'.20 As one tribunal said, 'the issues addressed by [ICSID and BIT] instruments are precisely those of confiscation, expropriation and nationalisation of foreign investments. Once the taking has occurred, there is nothing left except the possibility of using the ICSID/BIT mechanism. That purpose would be defeated if continuous ownership were required.'21 Instead, the investor is generally required to control the investment only at the time of the events giving rise to the claim – not before or afterwards.22
III NATURAL PERSONS
Generally, a natural person is considered a national under an IIA if he or she is considered a national under the state party's own law.23 Tribunals have found, however, that although nationality may be defined by the state party's own law, 'where . . . the jurisdiction of an international tribunal turns on an issue of nationality, the international tribunal is empowered, indeed bound, to decide that issue'.24 Accordingly, in certain circumstances a tribunal may be empowered to determine whether an investor qualifies as a national even in contradiction of that nation's own findings of fact.25
Depending on the IIA, an investor may bring a claim if he or she has dual nationality with both a contracting state and a non-contracting state. Some have opined that there is no issue under the Energy Charter Treaty, for instance, given the ordinary meaning of the treaty's language: Article 26(1) refers to '[d]isputes between a Contracting Party and an Investor of another Contracting Party'.26 Likewise, several commentators and tribunals have found that dual nationality does not present a problem under the ICSID Convention.27 Tribunals have rejected arguments that a claimant's nationality must be 'effective'28 – that is, that the claimant must show a genuine link with the contracting state through which he or she brings his or her claim.29 One tribunal said, '[A]s regards dual nationals who do not hold the nationality of the host State . . . the ICSID drafters did not subject their access to ICSID jurisdiction to the effective nationality test'.30
Typically, however, a dual national cannot bring a claim if one of his or her nationalities is that of the host state.31 Article 25(2)(a) of the ICSID Convention specifically excludes 'any person who [on the relevant dates] also had the nationality of the Contracting State party to the dispute'. One ICSID tribunal found that such dual nationals are excluded even when his or her nationality with the host state is no longer effective.32
It is recommended to always consult the relevant IIA, however, because there is not necessarily a common approach to these questions. The USMCA, for instance, states that 'a natural person who is a dual citizen is deemed to be exclusively a national of the State of his or her dominant and effective citizenship.'33 Some understand such language to permit a dual national to bring a claim against the host state even if the claimant were also a national of that state, so long as it was not their 'dominant and effective' nationality.
IV JURIDICAL PERSONS
Unincorporated entities will generally not enjoy legal protection unless specified by the IIA.34 Article 25(2)(b) of the ICSID Convention, which defines the nationality of juridical persons, requires legal personality – 'a mere association of individuals or of juridical persons would not qualify.'35 As a related point, entities that lack the capacity to sue under the law under which they were formed will not generally be able to sue under an IIA.36
i The nationality of juridical persons
Determining the nationality of a corporation can sometimes be more complicated than defining the nationality of a natural person.37 '[T]he ICSID Convention does not impose any particular test for the nationality of juridical persons not having the nationality of the host State,'38 and there are several methods to determine corporate nationality. Sometimes the same IIA may incorporate multiple tests or adopt separate definitions of corporate nationality for each party.39
One of the more common tests to determine a company's nationality is to look at the law under which the company was incorporated.40 The US Model BIT of 2012, for instance, describes an 'enterprise of a Party' as 'an enterprise constituted or organized under the law of a Party'; the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) does the same.41 Some respondents have objected to this test, arguing that businesses must also show a bona fide connection to the state under which they claim nationality. ICSID tribunals have generally rejected such arguments, finding that contracting state parties 'should be given the widest possible latitude to agree on the meaning of “nationality”',42 and that 'it is not open to the Tribunal to add other requirements which the parties themselves could have added but which they omitted to add.'43
Other treaties' definitions of nationality may include the corporate seat, or 'siège social'. The particular meaning of siège social within a given agreement, however, may be the subject of contention: tribunals have found the phrase is not a '“legal term of art,” with only one meaning'.44 Instead, it can be 'susceptible of either a formal or substantive meaning'45 – it 'can either be statutaire, referring to the seat appearing in the company's bylaws or statutes, or réel, referring to the effective seat where the company is actually managed'.46 Recent tribunals have diverged when interpreting the term in the context of Belgium–Luxembourg Economic Union (BLEU) BITs.47
Some IIAs require a bond of economic substance between the corporate investor and the state of its purported nationality. This bond might consist of 'effective control' over the corporation by nationals or the company having 'genuine economic activity' within the state.48 Such a requirement can be designed to prevent 'treaty shopping', where investors with no real connection to a country structure their holdings so that they can claim protection under a favourable BIT.
ii Denial of benefits
Some IIAs contain 'denial of benefits' clauses to preclude certain investors – typically, those with no meaningful connection to a contracting state – from taking advantage of an IIA's protections. Under such a clause, states reserve the right to deny a company of another party the benefits of the IIA in certain circumstances, such as if the company has no substantial business activities within the state party of its incorporation. For instance, Article 9.15 of the CPTPP reads, in part:
A Party may deny the benefits of this Chapter to an investor of another Party that is an enterprise of that other Party and to investments of that investor if the enterprise:
- is owned or controlled by a person of a non-Party or of the denying Party; and
- has no substantial business activities in the territory of any Party other than the denying Party.
The Comprehensive Economic and Trade Agreement between the European Union and Canada has a denial of benefits clause allowing contracting states to deny benefits to a corporate investor if the investor's owners are nationals of a third-party state that is subject to sanctions. Article 8.16 states:
A Party may deny the benefits of this Chapter to an investor of the other Party that is an enterprise of that Party and to investments of that investor if:
- an investor of a third country owns or controls the enterprise; and
- the denying Party adopts or maintains a measure with respect to the third country that:
- relates to the maintenance of international peace and security; and
- prohibits transactions with the enterprise or would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise or to its investments.
Tribunals have differed as to whether a denial of benefits clause needs to be invoked before arbitration has been sought.49 Though a denial of benefits clause may be substantively similar to a restricted definition of 'investor' based on bonds of economic substance, the burden of proof can be different – while a claimant generally has the jurisdictional burden of proving that it falls within the definition of 'investor', tribunals diverge on who bears the burden of proof once a state invokes a denial of benefit clause.50
iii Foreign control of local companies
'Host states often require that investments are made through locally incorporated companies.'51 While such local companies might not otherwise qualify as foreign investors, the ICSID Convention makes special allowance for them should a state agree to it. Under Article 25(2)(b) of the ICSID convention, a 'National of another Contracting State' includes:
Any juridical person which had the nationality of the Contracting State party to the dispute on that date and which, because of foreign control, the parties have agreed should be treated as a national of another Contracting State for the purposes of this Convention.
In other words, some IIAs will treat a local company as a foreign investor – namely, as eligible to bring an international arbitration claim – if they are foreign-controlled and the state consents to it. States may consent in either a direct contract with the investor or by a blanket offer of consent via the IIA. In the latter case, the IIA will usually state more broadly that local companies controlled by nationals of the other state will be treated as nationals of that state.52
Tribunals have noted that the ICSID Article 25(2)(b) 'separately establishes a subjective test and an objective test'. Even where the parties agree 'to treat the company as a national of another Contracting State for the purposes of this Convention', ICSID jurisdiction is not satisfied unless the company is actually subject to foreign control – the 'objective test is not satisfied by mere agreement by the Parties'.53
The CPTPP too provides a path to arbitration for local companies controlled by a foreign investor, albeit via a different mechanism. Article 9.19(1)(b) permits claimants to bring a claim 'on behalf of an enterprise of the respondent that is a juridical person that the claimant owns or controls directly or indirectly'.
Notably, both the ICSID Convention and the CPTPP may require control, and thus the status of minority shareholders remains an open question that needs careful review under the specific facts.54 One tribunal confronted whether, through a shareholders' agreement, a foreign investor might aggregate its ownership share of a local company with other investors to achieve the requisite degree of 'foreign control' under Article 25(2)(b) of the ICSID Convention. It found such aggregation permissible in some circumstances but not in others.55
IIAs may also offer independent standing to shareholders – the shareholding itself becomes the investment. 'Put differently, even if the local company is not endowed with investor status, the investor's participation therein is seen as the investment.'56 Under this approach, the shareholder, as investor, bring claims in its own name 'for adverse action by the host state against the company that affects its value and profitability'.57
iv State-owned enterprises
Some IIAs explicitly protect entities owned or controlled by a state.58 Even where IIAs do not, however, state-owned enterprises may in certain circumstances receive investor protection. In ICSID arbitrations, tribunals must decide whether a state enterprise is 'a national of another Contracting State' under Article 25. Several tribunals have applied the 'Broches test', named after the first ICSID Secretary-General Aron Broches, under which 'a mixed economy company or government-owned corporation should not be disqualified . . . unless it is acting as an agent for the government or is discharging an essentially governmental function.'59
It is axiomatic that if an investor is not covered by an IIA, that IIA generally does not provide the investor with substantive protections. An investor's status, therefore, is often central to the resolution of the dispute itself. Determining this status requires careful analysis – it will turn both on the particular language of the applicable IIA and on the facts at hand, which can often involve complex corporate structures or searching inquiries into how a person has lived. Should a dispute arise between an investor and a state, both parties should develop a view on the issues early in the proceedings.
1 Mélida Hodgson is head of the New York International Arbitration Practice at Jenner & Block LLP, where David Manners-Weber is an associate.
2 Campbell McLachlan et al., International Investment Arbitration: Substantive Principles 112 (2008).
3 See, e.g., United Utilities (Tallinn) B.V. v. Republic of Estonia, ICSID Case No. ARB/14/24, Award, 21 June 2019, para. 354 ('Not requiring from a purported foreign investor to demonstrate that it meets the nationality criterion at the time of the alleged breach of the Treaty would run afoul of the clear intent of the BIT's signatories').
4 Rudolf Dolzer & Christoph Schreuer, Principles of International Investment Law 54, 2nd edn, 2012 ('It appears from these cases that prospective planning within the framework of existing treaties will be accepted by tribunals. . . . What appears to be impossible is to create a remedy for existing grievances, in particular after a dispute has arisen, by arranging for a desirable nationality').
5 Zachary Douglas, The International Law of Investment Claims 290, 2009 ('There cannot . . . be a restructuring of the investment in order to resort to the dispute resolution provisions of an investment treaty once a dispute has arisen. Treaty shopping is acceptable; forum shopping is not'). See also Isolux Infrastructure Netherlands, BV v. Kingdom of Spain, SCC Case No. V2013/153, Award, 12 July 2016, para. 697; Mobil Corp. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/27, Decision on Jurisdiction, 10 June 2010, para. 205; Phoenix Action, Ltd. v. Czech Republic, ICSID Case No. ARB/06/5, Award, 15 April 2009, para. 144 (finding 'an abuse of the system of international ICSID investment arbitration' where a Czech investor tried to bring a pre-existing claim against the Czech Republic under the Israel–Czech Republic BIT by selling his investment to an Israeli company that he had created; 'if it were accepted that the Tribunal has jurisdiction to decide Phoenix's claim, then any pre-existing national dispute could be brought to an ICSID tribunal by a transfer of the national economic interests to a foreign company in an attempt to seek protections under a BIT').
6 Compare Loewen Group, Inc. v. United States of America, ICSID Case No. ARB(AF)/98/3, Award, 26 June 2003, para. 225. ('In international law parlance, there must be continuous national identity from the date of the events giving rise to the claim, which date is known as the dies a quo, through the date of the resolution of the claim, which date is known as the dies ad quem') with Waguih Elie George Siag v. Arab Republic of Egypt, Award, ICSID Case No. ARB/05/15, Award, 1 June 2009, paras 497–99 (noting several critiques of Loewen and expressing the tribunal's view that 'the ICSID Convention does not require a party to hold constant nationality until the date of the award').
7 See International Law Commission, Draft Articles on Diplomatic Protection with Commentaries 31, 2006, available at http://legal.un.org/ilc/texts/instruments/english/commentaries/9_8_2006.pdf (noting 'the continuous nationality rule is well established', though has been subject to criticism).
8 Ben Juratowitch, 'The Relationship between Diplomatic Protection and Investment Treaties', 23 ICSID Review–Foreign Investment L. J. 10, 13, 2008.
9 See International Law Commission, footenote 7, at 31, 38–39 (commenting upon the text of Articles 5 and 10).
10 See, e.g., Michael Ballantine v. Dominican Republic, PCA Case No. 2016-17, Award, 3 September 2019, para. 527 (analysing provisions from the Dominican Republic-Central America-United States Free Trade Agreement to conclude that compliance with the treaty's nationality requirement 'is fundamental at the moment the claim was submitted . . . and at the moment of the alleged breach').
11 See also Vladislav Kim v. Republic of Uzbekistan, ICSID Case No. ARB/13/6, Decision on Jurisdiction, 8 March 2017, paras 190–91 (stating that under the ICSID Convention and the Kazakhstan–Uzbekistan BIT, the natural investor needed to demonstrate nationality on the date of the alleged breach, the date of the claim's submission to ICSID and the date the claim was registered by ICSID); Waguih Elie George Siag v. Arab Republic of Egypt, Decision on Jurisdiction, 11 April 2007 (Waguih Elie George Siag), para. 206 ('The Tribunal . . . finds that the relevant dates under the Convention are the date of consent and the date of registration'); Ioan Micula v. Romania, ICSID Case No. ARB/05/20, Decision on Jurisdiction and Admissibility, 24 September 2008, para. 111 ('Pursuant to Article 25(2)(b) of the ICSID Convention, the relevant date for determining the nationality of the Corporate Claimants is the date of the consent to submit the dispute to ICSID arbitration, i.e., the date of the Request').
12 See Waguih Elie George Siag, footnote 11, at paras 205–06.
13 See Douglas, footnote 5, at 299–300.
15 Aguas del Tunari, S.A. v. Republic of Bolivia, ICSID Case No. ARB/02/3, Decision on Respondent's Objections to Jurisdiction, 21 October 2005 (Aguas del Tunari), para. 264.
17 USMCA Article 14.1, available at https://ustr.gov/sites/default/files/files/agreements/FTA/USMCA/Text/14-Investment.pdf; US 2012 Model BIT Article 1, available at https://ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf.
19 See Aguas del Tunari, footnote 15, at para. 236.
20 El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Decision on Jurisdiction, 27 April 2006 (El Paso Energy International Company), para 135. See also Mondev International, Ltd. v. United States of America, ICSID Case No. ARB(AF)/99/2, Award, 11 October 2002, para. 91 (applying a similar logic in the context of the NAFTA: 'To require the claimant to maintain a continuing status as an investor under the law of the host State at the time the arbitration is commenced would tend to frustrate the very purpose of Chapter 11, which is to provide protection to investors against wrongful conduct including uncompensated expropriation').
21 El Paso Energy International Company, footnote 20, at para. 135.
22 See Daimler Financial Services AG v. Argentine Republic, ICSID Case No. ARB/05/1, Award, 22 August 2012, para. 145 (according standing 'to any qualifying investor under the relevant treaty texts who suffered damages as a result of the allegedly offending governmental measures at the time that those measures were taken') (emphasis in original). But see David R. Aven v. Republic of Costa Rica, ICSID Case No. UNCT/15/3, Final Award, 18 September 2018, para. 301 (reasoning that 'an investor who disposes of ownership of the investment in question before arbitral proceedings should not be eligible to seek the Treaty's protection, unless special circumstances are present. Such circumstances include, inter alia, the loss of the investment by the actions of a third party or the retroactive application of a treaty').
23 See, e.g., Hussein Nuaman Soufraki v. The United Arab Emirates, ICSID Case No. ARB/02/7, Award, 7 July 2004 (Hussein Nuaman Soufraki), para 55. ('It is accepted in international law that nationality is within the domestic jurisdiction of the State, which settles, by its own legislation, the rules relating to the acquisition (and loss) of its nationality').
25 In Hussein Nuaman Soufraki, footnote 23, the claimant asserted he was an Italian citizen protected by the BIT between Italy and the UAE. He provided the court with five Certificates of Nationality, copies of his Italian passports and a letter from the Italian Ministry of Foreign Affairs that explicitly declared Soufraki was entitled to invoke the ICSID/BIT forum on the basis of his Italian citizenship. Para. 14. The panel, however, stated that it 'will in the end decide for itself whether, on the facts and law before it, the person whose nationality is at issue was or was not a national of the State in question'. Para. 55. It found that under Italian law, Soufraki – unbeknown to him – had forfeited his citizenship when he acquired Canadian nationality and residence, para. 52, and so the tribunal lacked jurisdiction to hear the dispute, para. 84.
26 See Crina Baltag, The Energy Charter Treaty: The Notion of Investor 96–98, 2012.
27 ibid., at 96–97. The Preliminary Draft of the ICSID Convention explicitly permitted investors who possessed the nationality of both a contracting and non-contracting state to be covered. ibid., at 97.
28 Dolzer & Schreuer, footnote 4, at 46 (noting cases).
29 For more on effective nationality, see Nottebohm (Liechtenstein v. Guatemala), 18 November 1953,  ICJ Reports 111.
30 Saba Fakes v. Republic of Turkey, ICSID Case No. ARB/07/20, Award, 14 July 2010, para. 63.
31 Dolzer & Schreuer, footnote 4, at 46; see also Manuel García Armas v. Bolivarian Republic of Venezuela, PCA Case No. 2016-08, Award on Jurisdiction, 13 December 2019 (stating that the tribunal was not convinced that international law provides that dual nationals can claim without restrictions against a State of their own nationality, although nothing impedes States from choosing to afford such protections in their treaties).
32 Champion Trading Company v. Arab Republic of Egypt, ICSID Case No. ARB/02/9, Decision on Jurisdiction, 21 October 2003, Section 3.4.1.
33 Article 14.1, available at https://ustr.gov/sites/default/files/files/agreements/FTA/USMCA/Text/14-Investment.pdf. Article 1 of the US 2012 Model BIT uses similar language. Available at https://ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf. The 'dominant and effective' test draws from the Iran–US Claims Tribunal Case No. A/18 (6 April 1984) 5 Iran-USCTR 251. For a discussion of this case, see McLachlan et al., footnote 2, at 134–35.
34 Dolzer & Schreuer, footnote 4, at 47.
35 Impregilo S.p.A. v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/3, Decision on Jurisdiction, 22 April 2005, para. 133 (quoting Christoph H. Schreuer, The ICSID Convention: A Commentary 276, 2001).
36 Douglas, footnote 5, at 312.
37 Dolzer & Schreuer, footnote 4, at 47.
38 KT Asia Investment Group B.V. v. Republic of Kazakhstan, ICSID Case No. ARB/09/8, Award, 17 October 2013, para. 113.
39 Dolzer & Schreuer, footnote 4, at 47.
41 Article 9.1. The CPTPP's definition of 'enterprise of a Party' additionally includes 'a branch [of an enterprise] located in the territory of a Party and carrying out business activities there'. See also, e.g., Blue Bank International & Trust (Barbados) Ltd. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/12/20, Award, 26 April 2017, para. 157 (finding the Barbados–Venezuela BIT's nationality requirement had been satisfied where the claimant company had incorporated under the laws of a contracting state).
42 Tokios Tokelės v Ukraine, ICSID Case No. ARB/02/18, Decision on Jurisdiction, 29 April 2004 (Tokios Tokelės), para. 25.
43 Saluka Investments B.V. v. The Czech Republic, UNCITRAL, Decision on Jurisdiction, 7 May 2004, para. 240. See also Tokios Tokelės, footnote 42, at para. 36 ('In our view, it is not for tribunals to impose limits on the scope of BITs not found in the text, much less limits nowhere evident from the negotiating history'). In Tokios Tokelės, a Lithuanian company invoked the Lithuania–Ukraine BIT to bring ICSID arbitration proceedings against Ukraine. Ukraine objected, contending that the company was not a 'genuine entity' of Lithuania because, among other things, Ukrainian nationals owned 99 percent of the company's shares and comprised two-thirds of its management. Para. 21. It argued that to allow a suit under these circumstances would thwart the object and purpose of the ICSID Convention by effectively 'allowing Ukrainian nationals to pursue international arbitration against their own government'. Para. 22. The tribunal rejected Ukraine's arguments. It noted that Article 1(2) of the BIT defined corporate nationality as 'any entity established in the territory of the Republic of Lithuania in conformity with its laws and regulations', and so found the company to be a Lithuanian national.
44 Tenaris S.A. & Talta-Trading v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/11/26, Award, 29 January 2016 (Tenaris S.A. & Talta-Trading), para. 144.
45 ibid., (emphasis in original).
46 Orascom TMT Investments S.à r.l. v. People's Democratic Republic of Algeria, ICSID Case No. ARB/12/35, Final Award, 31 May 2017 (Orascom TMT Investments S.à r.l.), para. 273.
47 In Tenaris S.A. & Talta-Trading, footnote 44, an ICSID tribunal was asked to interpret the term in the context of the BLEU–Venezuela BIT, which coupled a siège social requirement with a law of incorporation requirement. The tribunal found siège social to mean 'the place of actual or effective management', para. 154, because, were it to mean the 'purely formal matter of the address of a registered office or statutory seat', the term would be superfluous given that relevant laws of incorporation already encompassed a registered office requirement. Para. 150. In Capital Financial Holdings Luxembourg S.A. v. Republic of Cameroon, the tribunal followed the same approach. ICSID Case No. ARB/15/18, Award, 22 June 2017, para. 263. In Orascom TMT Investments S.à r.l., footnote 46, however, the tribunal rejected Tenaris S.A. & Talta-Trading's reasoning. Para. 287. Instead, when interpreting the BLEU–Algeria BIT, it found that siège social referred to a corporation's 'registered office'. It found this interpretation did not render the term superfluous under the BIT, even as the relevant law of incorporation already required a registered office; rather, it found that 'the BIT simply spells out the place of incorporation test by specifying the two elements generally associated with it (constitution in accordance with local law and registered office).' Para. 298.
48 Dolzer & Schreuer, footnote 4, at 49 (emphasis removed). See, e.g., the 2012 BIT between Egypt and Switzerland, protecting entities 'which are constituted or otherwise duly organized under the law of that Contracting Party and have their statutory seat, together with real economic activities, in the territory of the same Contracting Party'. Available at https://investmentpolicyhub.unctad.org/Download/TreatyFile/1113.
49 Compare, e.g., Guaracachi America, Inc. v. The Plurinational State of Bolivia, UNCITRAL, Award, 31 January 2014 para. 376 (Guaracachi America, Inc.) (finding that 'it is proper that the denial is “activated” when the benefits are being claimed', and so the denial of benefits may be invoked at the time the claimant seeks arbitration) with Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1, Award, 16 May 2018, para. 239 (finding that 'it would contradict the text and the purposes of the ECT to say that a Contracting State may deny benefits retrospectively, after an investment has been made and a dispute has arisen.').
50 Compare Ulysseas, Inc. v. The Republic of Ecuador, Interim Award, 28 September 2010, para. 166 (finding the burden with the state), with Guaracachi America, Inc., note 47, at para. 370 (finding the burden with the investor).
51 Dolzer & Schreuer, footnote 4, at 50.
52 ibid., at 51.
53 Natural Gas S.A.E. v. Arab Republic of Egypt, ICSID Case No. ARB/11/17, 3 April 2014, para. 133. See also Vacuum Salt Products Ltd. v. Republic of Ghana, ICSID Case No. ARB/92/1, 16 February 1994, para. 36 (finding that 'the parties' agreement to treat Claimant as a foreign national “because of foreign control” does not ipso facto confer jurisdiction'); Eskosol S.p.A. in liquidazione v. Italian Republic, ICSID Case No. ARB/15/50, Decision on Respondent's Application Under Rule 41(5), 20 March 2017, para. 90 ('the test for Article 25(2)(b) of the ICSID Convention also has an objective component that is not necessarily satisfied merely because of the parties' subjective agreement.').
54 See Dolzer & Schreuer, footnote 4, at 57 (noting that neither the ICSID Convention nor the NAFTA, which has similar language to the CPTPP, 'offer comfort to minority shareholders').
55 See Camuzzi International S.A. v. The Argentine Republic, ICSID Case No. ARB/03/2, Decision on Objection to Jurisdiction, 11 May 2005, paras. 38–41. For a critique of this tribunal's reasoning, see Douglas, footnote 5, at 320–21 (criticising the case for 'mistak[ing] the jurisdictional nature of Article 25(2)(b)' and for contradicting 'the express terms of that provision').
56 Dolzer & Schreuer, footnote 4, at 57.
58 See, e.g., Article 9.1 of the 2015 Australia–China free trade agreement, which expressly defines the term 'enterprise' to include 'governmentally owned or controlled' entities.
59 Beijing Urban Construction Group Co. Ltd. v. Republic of Yemen, ICSID Case No. ARB/14/30, Decision on Jurisdiction, 31 May 2017, para. 33. See also Ceskoslovenska Obchodini Banka A.S. v. The Slovak Republic, ICSID Case No. ARB/97/4, Decision on Objections to Jurisdiction, 24 May 1999; Emilio Agustín Maffezini v. Kingdom of Spain, ICSID Case No. ARB/97/7, Decision on Objections to Jurisdiction, 25 January 2000; Rumeli Telekom A.S. v. Republic of Kazakhstan, ICSID Case No. ARB/05/16, Award, 29 July 2008 (invoking and applying the Broches test).